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[U] Commonwealth v. Gajewski

Superior Court of Pennsylvania

March 11, 2014

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL GAJEWSKI, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order, January 17, 2013, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0011538-2007

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE AND PLATT, [*] JJ.

MEMORANDUM

FORD ELLIOTT, P.J.E.

Michael Gajewski appeals from the order denying relief on appellant's second petition brought pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. We affirm.

In connection with an incident involving the victim S.J.[1], appellant entered a nolo contendere plea to indecent assault of a person less than 13 years of age and corruption of minors.[2] Immediately thereafter, appellant was sentenced to time served plus a term of 5 years' probation for indecent assault as well as a consecutive term of 2 years' probation for corruption of minors. On August 29, 2008, appellant filed a petition to withdraw his plea claiming he was not aware that CYF would remove S.J. from his girlfriend's home; the petition was denied on September 8, 2008. (Docket #9.) Appellant filed a direct appeal asserting that the lower court erred in denying his post-sentence motion to withdraw his plea; judgment of sentence was affirmed on October 7, 2010. Commonwealth v. Gajewski, 15 A.3d 520 (Pa.Super. 2010) (unpublished memorandum).

On October 27, 2011, appellant filed a pro se PCRA petition challenging the voluntariness of his plea and raising a claim that the victim had recanted her allegations against him. On November 2, 2011, the court appointed Charles R. Pass, III, Esq., to represent appellant and an amended petition was filed raising the additional claim that his sentence was illegal as it exceeded the lawful maximum. On March 7, 2012, appellant was resentenced due to a probation violation and a corrected sentence was imposed rendering the illegal sentencing claim raised in the PCRA petition moot. On May 18, 2012, counsel filed a no-merit letter requesting to withdraw pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988); Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). The court granted counsel's motion to withdraw but appointed new counsel to represent appellant at a hearing limited to the recantation issue.

Following evidentiary hearings on December 17, 2012 and January 16, 2013, the court denied appellant's petition by order dated January 17, 2013. This timely appeal followed. Appellant complied with the trial court's order to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion.

Appellant presents the following issue for our review:

WHETHER THE PCRA COURT ERRONEOUSLY DISMISSED APPELLANT'S PCRA PETITION AND DETERMINED THAT THE VICTIM CREDIBLY TESTIFIED AND DID NOT RECANT HER TESTIMONY WITH REGARD TO THE FACTS SUPPORTING THE CHARGES, WHEN THE RECANTATION LETTER PURPORTEDLY AUTHORED BY THE VICTIM WAS EXCULPATORY AFTER-DISCOVERED EVIDENCE THAT WOULD HAVE CHANGED THE OUTCOME OF THE TRIAL IF IT HAD BEEN INTRODUCED[?]

Appellant's brief at 5.

Essentially, appellant argues that the PCRA court erred when it determined that he was not entitled to relief from his guilty plea on the basis that the victim recanted her claim that appellant had assaulted her. Our standard of review of a PCRA court's denial of a petition for post-conviction relief is well settled. We must examine whether the record supports the PCRA court's determination, and whether the PCRA court's decision is free of legal error. Commonwealth v. Hall, 867 A.2d 619, 628 (Pa.Super. 2005), appeal denied, 86 Pa. 756, 895 A.2d 549 (2006). The PCRA court's findings will not be disturbed unless there is no support for the findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa.Super. 2001). Our scope of review is limited by the parameters of the PCRA. Commonwealth v. Hellman, 867 A.2d 542, 544 (Pa.Super. 2005), appeal denied, 583 Pa. 669, 876 A.2d 393 (2005).

"To be eligible for PCRA relief, the burden rests upon the PCRA petitioner to establish by a preponderance of the evidence that his sentence resulted from one or more of the enumerated errors or defects listed in 42 Pa.C.S.A. § 9543(a)(2)." Commonwealth v. Crawley, 541 Pa. 408, 412-413, 663 A.2d 676, 678 (1995). The PCRA subsection governing relief from a guilty plea is as follows:

(a) General rule.--To be eligible for relief under this subchapter, the petitioner must plead and prove by a preponderance of the evidence all of the following:
(2) That the conviction or sentence resulted from one or more of the following:
(iii) A plea of guilty unlawfully induced where the circumstances make it likely that the inducement caused the petitioner to plead guilty and the petitioner is innocent.

42 Pa.C.S.A. § 9543(a)(2)(iii). A defendant is also permitted to withdraw his guilty plea under the PCRA if ineffective assistance of counsel caused the defendant to enter an involuntary plea. Commonwealth v. Lynch, 820 A.2d 728, 732 (Pa.Super. 2003). Here, appellant does not claim that his plea was unlawfully induced or that his plea counsel rendered ineffective assistance. Accordingly, appellant is not entitled to relief pursuant to Section 9543(a)(2)(iii).

Rather, appellant argues he is entitled to relief from his guilty plea under section 9543(a)(2)(vi) because the victim's recantation of her prior statements accusing appellant constitutes newly-discovered evidence. We disagree.

In Commonwealth v. Starr, 450 Pa. 485, 301 A.2d 592 (1973), the supreme court held that a court should allow the withdrawal of a guilty plea after sentencing to correct a manifest injustice to the defendant. Subsequently, the supreme court determined that any after-discovered evidence which would justify a new trial would also satisfy the requirements of Starr, supra. Commonwealth v. Peoples, 456 Pa. 274, 275-276, 319 A.2d 679, 681 (1974). "[A]ny after-discovered evidence which would justify a new trial would also entitle a defendant to withdraw his guilty plea." Id.[3]

"To obtain relief based upon newly-discovered evidence under the PCRA, a 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. D'Amato, 579 Pa. 490, 519, 856 A.2d 806, 823 (2004). The PCRA statute specifically provides relief where a petitioner can prove "[t]he unavailability at the time of trial of exculpatory evidence that has subsequently become available and would have changed the outcome of the trial if it had been introduced." 42 Pa.C.S.A. § 9543(a)(2)(vi).

Assuming that appellant's claim is cognizable under the PCRA as a claim of newly-discovered evidence, we conclude that he is not entitled to relief. The PCRA court conducted an evidentiary hearing pursuant to appellant's PCRA petition. The issue before the PCRA court was one of credibility and the court clearly credited the victim's testimony and found she was not recanting any of the claims made about appellant concerning her sexual abuse. After reviewing the letter and her testimony, the court actually found that the letter confirmed her allegations of abuse. (Trial court opinion, 5/29/13 at 5.) A PCRA court's credibility findings are to be accorded great deference. Commonwealth v. White, 557 Pa. 408, 421, 734 A.2d 374, 381 (1999) (holding that an appellate court is bound by the credibility determinations of the PCRA court where those determinations are supported by the record). The record supports the PCRA court's conclusion. Accordingly, we discern no error or abuse of discretion by the PCRA court in denying appellant relief.

Order affirmed.

Judgment Entered.


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